N.J. Admin. Code § 13:44K-8.5

Current through Register Vol. 56, No. 21, November 4, 2024

Section 13:44K-8.5 - Sexual misconduct

(a) As used in this section, the following terms have the following meanings unless the context clearly indicates otherwise:

"Client" means any person who is the recipient of occupational therapy evaluation, instruction, treatment, or consultation rendered by a licensee.

"Client-therapist relationship" means a relationship between an occupational therapist, occupational therapy assistant, or temporarily licensed occupational therapist or occupational therapy assistant, and the client wherein the licensee owes a continuing duty to the client to render occupational therapy services consistent with his or her training and experience.

"Licensee" means any person licensed to engage in practice as an occupational therapist, occupational therapy assistant or temporarily licensed occupational therapist or occupational therapy assistant in the State of New Jersey.

"Sexual contact" means the knowing touching of a person's body directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the licensee's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes, but is not limited to, the imposition of a part of the licensee's body upon a part of the client's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or client's body into or near the genital, anal or other opening of the other person's body. "Sexual contact" does not include the touching of a client's body which is necessary during the performance of a generally accepted and recognized occupational therapy procedure.

"Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or non-verbal conduct that is sexual in nature, and which occurs in connection with a licensee's activities or role as a provider of occupational therapy services, and that either: is unwelcome, is offensive to a reasonable person, or creates a hostile workplace environment, and the licensee knows, should know, or is told this; or is sufficiently severe or intense to be abusive to a reasonable person in that context. "Sexual harassment" may consist of a single extreme or severe act or of multiple acts and may include, but is not limited to, conduct of a licensee with a client, co-worker, employee, student or supervisee whether or not such individual is in a subordinate position to the licensee. "Sexual harassment" may also include conduct of a nonsexual nature if it is based on the sex of an individual.

"Spouse" means the husband, wife, civil union partner or fiancee of the licensee or an individual involved in a long-term committed relationship with the licensee. For purposes of the definition of "spouse," a long-term committed relationship means a relationship, which is at least six months in duration.

(b) A licensee shall not engage in sexual contact with a client or immediate family member or guardian of a client with whom he or she has a client-therapist relationship. The client-therapist relationship is ongoing for purposes of this section, unless:

1. Occupational therapy is terminated by way of written notice to the client and is documented in the client record; and

2. The last occupational therapy was rendered more than six months ago.

(c) In circumstances where the client is, or should be recognized by the licensee as, clearly vulnerable by reason of emotional or cognitive disorder to exploitive influence by the licensee, the prohibition on sexual contact shall extend indefinitely.

(d) A licensee shall not seek or solicit sexual contact with a client or immediate family member or guardian of a client with whom he or she has a client-therapist relationship and shall not seek or solicit sexual contact with any person in exchange for professional services.

(e) A licensee shall not engage in any discussion of an intimate sexual nature with a client, unless that discussion is directly related to a proper occupational therapy purpose. Such discussion shall not include disclosure by the licensee of his or her own sexual relationships.

(f) A licensee shall provide privacy and examination conditions which prevent the exposure of the unclothed body of the client. Appropriate draping measures shall be employed to protect client privacy.

(g) A licensee shall not engage in sexual harassment either within or outside of the professional setting.

(h) A licensee shall not engage in any other activity which would lead a reasonable person to believe that the activity serves the licensee's personal prurient interests or which is for the sexual arousal, or sexual gratification of the licensee or client or which constitutes an act of sexual abuse.

(i) Violation of any of the prohibitions or directives set forth in (c) through (h) above shall constitute professional misconduct pursuant to 45:1-21(e).

(j) Nothing in this section shall be construed to prevent a licensee from rendering occupational therapy to a spouse, providing that the rendering of such occupational therapy is consistent with accepted standards of occupational therapy and that the performance of occupational therapy is not utilized to exploit the client spouse for the sexual arousal or sexual gratification of the licensee.

(k) It shall not be a defense to any action under this section that:

1. The client solicited or consented to sexual contact with the licensee; or

2. The licensee is in love with or held affection for the client.

N.J. Admin. Code § 13:44K-8.5

Amended by 51 N.J.R. 769(b), effective 5/20/2019